L. Rath, J.:— These revisions have come before us by way of reference to a larger Bench by one of us substantially on the question as to whether the benefit of S. 30(2) of the Land Acquisition (Amendment) Act 1984 (Act 68 of 1984) (hereinafter referred to as ‘the Amending Act’) increasing the solatium and the rate of interest is available to awards which are passed by the Subordinate Judge during the period 30-4-1982 to 24-9-1984 on remand from the High Court but in which cases the original awards had been passed prior to 30-4-1982.

2. A brief narration of facts is necessary to illustrate the question raised. The notifications under S. 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) were issued on different dates during 1964. The awards were made by the Land Acquisition Officer during 1970 and 1971 determining the valuation of the land at Rs. 10,000/- per acre and granting 15% solatium and 6% interest. On reference made to the Subordinate Judge under S. 18 of the Act (sic) was enhanced to Rs. 43,000/- per acre and awards were drawn up in accordance with S. 26(1) of the Act in the year 1977. First Appeals were preferred as against the awards in this Court during the pendency of which the petitioner deposited the entire amounts under awards and the amounts were withdrawn by the opposite parties. The First Appeals were disposed of remanding the matters to the Subordinate Judge who again decided those in 1980 fixing the market value of the land at Rs. 50,000/- per acre. First Appeals were again preferred before this Court challenging the valuation fixed. All the First Appeals were disposed of by this Court on 25-2-1982 setting aside the valuation fixed by the subordinate Judge and instead fixing Rs. 40,000/- per acre as the valuation wherever he had fixed it at Rs. 43,000/- and Rs. 43,000/- per acre wherever he had fixed at Rs. 50,000/- per acre as the valuation. This Court also decided that the claimants were entitled to statutory solatium at 15% and interest at 6% on the enhanced amount of compensation from the date of dispossession till payment. As in some cases part of the compensation had already been paid, such amounts were directed to be adjusted and the matters were sent back to the Subordinate Judge to revise the decrees in accordance with the decisions. The Subordinate Judge thereafter drew up the awards under S. 26(1) of the Act making the calculations in accordance with the directions of this Court in 1982. In the meantime after disposal of the second batch of First Appeals the opposite parties filed execution case for different amounts which were also deposited by the petitioner. Again on petitions filed by the opposite parties under O. 47, R. 1 read with S. 151 of the Code of Civil Procedure (hereinafter referred to as ‘C.P.C’) the Subordinate Judge allowed 30% solatium and interest at the rate of 9% for the first year and 15% for the subsequent years and also modified the judgments in the land acquisition cases during 1986. Again on petitions filed by the opposite parties under S. 152, C.P.C for correction of the judgment/awards, the Subordinate Judge allowed 12% additional compensation under S. 23(1A) and corrected the modified awards to that extent. Thereafter applications were filed by the petitioner before the executing Court contending that since this Court had finally disposed of the appeals on 25-2-1982 and the amounts had already been paid in the previous execution cases, the later execution cases filed by the opposite parties were not maintainable the decrees having been fully satisfied. The applications were rejected directing the petitioner to pay additional amounts. These orders of the Subordinate Judge have been impugned in the present revisions. Since all the revisions raise the common question of law, they are disposed of by this common judgment.

3. The reference made by the Hon'ble Mr. Justice A. Pasayat is on the following questions:

“(i) Whether the order passed by the learned Subordinate Judge in terms of the directions given by this Court on 25-2-1982 in certain first appeals was an award in terms of S. 26 of the Land Acquisition Act and, therefore, the claimant had entitlement to higher solatium and interest?

(ii) What is the effect of the non-challenge to the order passed by the learned Subordinate Judge awarding higher solatium and interest, and whether the executing Court could accept objection on the question of quantum when the order has not been assailed in any higher forum?

(iii) Whether any objection could be accepted for consideration, when there is non-challenge of the first available opportunity?”

The reference became necessary since, while there are two decisions of an Hon'ble single Judge taking the view that the award passed by the Court during the period 3-4-1982 to 24-9-1984 in accordance with the valuation fixed by the High Court is an award as referred to in S. 30(2) of the Amending Act entitling the claimant to higher compensation, the latter decisions of another learned single Judge and that of a Division Bench are to the contrary. Since it was felt by the Hon'ble Referring Judge that the decision of the Division Bench had not been correctly rendered, the reference was made.

4. The earlier two decisions of this Court reported in (1986) 61 Cut LT 680, Hadi Das v. Collector, Cuttack and (1986) 1 Ori LR 488, Ramchandra Pati v. Collector, Cuttack relied on AIR 1985 SC 1576, Bhag Singh v. Union Territory of Chandigarh. Since AIR 1985 SC 1576 (supra) was itself overruled by the later decision of the Supreme Court in AIR 1989 SC 1933, Union of India v. Ranghubir Singh which held the earlier decision AIR 1985 SC 1576 (supra) as having been correctly decided, the later single Judge decision of this Court in (1970) 2 Ori LR 31, Collector, Cuttack v. Uchhab Pati and the Division Bench decision in (1990) 70 CLT 706, Collector, Cuttack v. Nisamani Bewa relying on the same reached the contrary view than the earlier single Judge decisions.

5. It is the submission of the learned Additional Government Advocate appearing for the petitioner in all the revisions that as the provisions of S. 30(2) of the Amending Act have now been interpreted by the Supreme Court to mean that the benefit of higher compensation is available only to awards passed by either the Collector or the Court during the period 30-4-1982 to 24-9-1984 or to orders by the High Court or the Supreme Court thereupon whatever may be the date of such decision of the higher courts and that the relief of higher compensation is not available when actually the original awards were passed either by the Land Acquisition Collector or the Court prior to 30-4-1982. It is his submission that the higher compensation does not become payable merely because the Subordinate Judge does the arithmetical calculation during the relevant period 30-9-1982 to 29-9-1984 and draws up an award in terms of S. 26(1) of the Act which properly called is not an award and at any rate is not an award which entitles the claimant to higher compensation. It is on the other hand the submission of Mr. D.K Das, the learned counsel appearing for the opposite parties, that the application filed by the petitioner before the executing Court protesting against the payment of higher compensation was hit by constructive res judicata since the judgments modifying the awards had never been appealed against and that the petitioner has already paid parts of the higher compensations determined by the Subordinate Judge.

6. The extent of solatium payable under Section 23(2) of the Act was increased from 15% to 30% by the Amending Act. Under Section 30(2) thereof the higher solatium was given retrospective effect. For proper appreciation of the question involved, the provisions of Section 30(2) of the Amending Act may be beneficially extracted:—

“(2). The provisions of sub-section (2) of Section 23 and Section 28 of the Principal Act, as amended by Clause (b) of Section 15 and Section 18 of this Act, respectively, shall apply and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the Principal Act after the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People) and before the Government of this Act.”

The Supreme Court dealt with the interpretation of the provisions in extenso in AIR 1989 SC 1933 (supra) reaching the conclusion that the benefit of the enhanced solatium is available only to an award passed by the Collector under Section 11 of the Act between the period 30-4-1982 and 24-9-1984 or to an award made by the Court under Section 23 during the same period even though such award might have been made on reference from an award of the Collector made before 30-4-1982. While so deciding the Court also explained the words “or to any order passed by the High Court or Supreme Court in appeal against any such award” to mean that whatever may be the date of the order passed either by the High Court or the Supreme Court, yet the claimant is entitled to the benefit of higher solatium only if the award in respect of which such order in appeal is passed, may it be of the Collector or of the civil court, has been made during 30-4-1982 to 24-9-1984. If the date of the award passed by either of the two forums is outside the limit of the period either one way or other, the benefit does not become available even if the orders of the High Court or the Supreme Court in appeal fall between the two dates. The Court took notice of the fact that the Amending Act has not been given a general retrospective effect but only a limited one. In coming to such conclusion the Court explained significance of the word ‘such’ as confining the orders of the High Court or the Supreme Court only to the awards passed during the period in question. While the learned counsel appearing for the opposite parties did not dispute such legal position, it is however his contention that the award passed by the Subordinate Judge on remand is nonetheless an award passed in terms of Section 26(1) and since such award has been passed during the relevant period, the higher compensation becomes payable and that the order is not revisable.

7. So far as the question whether the award passed by the Subordinate Judge after remand is an award in terms of Section 26(1) of the Act is concerned, I do not find any difficulty to hold the same to be an award. It may be, as was decided by the Division Bench in (1990) 70 Cut LT 706 (supra), that the award drawn up by the Subordinate Judge after the valuation has been fixed by this Court is a mere routine affair involving only arithmetical calculation but all the same it satisfies the ingredients of award under Section 26(1) of the Act and hence it cannot be said to be not an award. As a matter of fact the original award passed by the Subordinate Judge was no longer in existence after it had been subjected to appeal in the High Court. But even though the determination of the Subordinate Judge is an award, yet it would hardly help the opposite parties to get the higher solatium. The legislature expressly identified the awards to which the benefit of higher solatium would apply by stating that the awards must have been passed during the period 30-4-1982 to 24-9-1984. If it had meant that the words would apply not only to awards as were originally passed during that period but also to awards which were passed on remand from the higher Courts, nothing prevented it to specifically say so. On the contrary such an interpretation would frustrate the very intention of the limited retrospectivity and would otherwise lead to unworkability as also violation of the constitutional guarantee of equality before the law. An order of remand may be passed by the High Court after lapse of many number of years and hence if the argument as advanced by the learned counsel appearing for the opposite parties is accepted, it would mean that an award which had been passed twenty years back but is taken up by the appellate Court at a belated period and sent on remand and on such remand the matter fortuitously falls to be decided by the civil court during the period 30-4-1982 to 24-9-1984, the enhanced compensation becomes payable. That this could not be the intention of the legislature as has itself been pointed out in the decision of the Supreme Court with these words:

“……. The learned Attorney General is also right when he points out that it was never intended to define the scope of the enhanced solatium on the mere accident of the disposal of a case in appeal on a certain date. Delays in the superior Courts extend now to limits which were never anticipated when the right to approach them for relief was granted by statute. If it was intended that S. 30(2) should refer to appeals pending before the High Court or the Supreme Court between 30 April, 1982 and 24 September, 1984, they could well refer to proceedings in which an award had been made by the Collector from anything between 10 to 20 years before. It could never have been intended that rates of compensation and solatium applicable to acquisition proceedings initiated so long ago should now enjoy the benefit of statutory enhancement.”

Hence it would be paradoxical to hold that while the benefits would not be available to orders passed by the superior courts in appeal during the period in question, yet it would become available if the direction of the superior Courts is carried out by the Subordinate Judge accidentally during that period and would not be available if the Subordinate Judge happens to decide beyond that period. Viewing the case from another angle an example would also explain the inherent weakness of the submission of the opposite parties. Supposing two awards were made by the Subordinate Judge on the same day prior to 30-4-1982 in two land acquisition proceedings relating to similar type of land. Two appeals carried to the High Court against the awards are also dismissed. Thereafter appeal is preferred to the Supreme Court in one case whereas the other claimant is not able to prefer an appeal. The Supreme Court remands the matter to the Subordinate Judge with directions and the latter determines the case on the basis of the directions during the relevant period. If the submission of the opposite parties is accepted, the claimant in such a case would become entitled to the higher compensation whereas the other claimant who had not been able to appeal to the Supreme Court would be deprived of the same. This itself would make higher compensation payable depending upon a fortuitous circumstance which could never be the intention of the legislature. I have hence no hesitation to hold that the claimants in each of the revisions were not entitled to higher solatium merely because the Subordinate Judge drew up awards in accordance with the direction of this Court on 25-2-1982.

8. As regards the other submission raised by Mr. Das on the principle of constructive res judicata, it is clearly misconceived. The grant of higher solatium involved is a question of jurisdiction of the Subordinate Judge to allow it. Since the Subordinate Judge had no competence to grant such higher solatium, his order was plainly without jurisdiction. He having had no jurisdiction to allow, the order was available to be questioned by the petitioner. In AIR 1954 SC 340 (Kiran Singh v. Chaman Paswan) it was observed that it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity and that the invalidity of the decree could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution, and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree. In AIR 1970 SC 838 (Srimathi Kaushalya Devi & Others v. Shri K.L Bansal ) where a compromise decree was passed without the Court satisfying itself if the grounds for eviction existed, the decree was held to be in contravention of S. 13 of the Delhi and Ajmer Rent Control Act and being a nullity to be incapable of execution.

9. In the result, I would not accept the reference and allow the revisions and would hold the Division Bench decision in (1990) 70 Cut LT 706 (supra) as also the single Judge decision in (1990) 2 Orissa 31 (supra) to have correctly decided the law and would overrule the single Judge decisions in (1986) 61 Cut LT 68 (supra) and (1986) 1 Orissa LR 488 (supra). No costs.

A. Pasayat, J.:— 10. I agree.

K.C Jagadeb Roy, J.:— 11. I agree.

Revision allowed.